Post Tagged with: Supreme Court

For starters, I helped get him elected. I served on the New Media Team as a volunteer for his first presidential campaign in 2008. I got to work with some incredible people: Chris Hughes, Arun Chaudhary, Dan Siroker, Michael Slaby, Gray Brooks, and many more, all of whom went on to do extraordinary things.

I was in Denver for the 2008 convention where, though not able to score an invite to the floor, I was able to witness an America divided by the hot button issues of the day, some of which are still with us: same-sex marriage, abortion, the war in Iraq, and immigration. I watched the DNC convention speeches with anticipation and excitement for the next eight years, fully swept up in the anti-Bush furor and pro-Obama fervor of the time.

Despite some misgivings, I was all in on Obama. I thought his vision was the right thing for the country at the time. I thought his story, and especially his race, were poignant symbols of the progress America had made. He didn’t need to play the ‘race card’ because his candidacy was the ultimate race card. He proved to America that leadership, eloquence, savvy and hard work transcend race and class. He was also the ultimate foil to eight years of George W. Bush: the president that America loved to hate. Bush was born rich and coasted to the presidency. Obama was born poor and worked his way into it. Bush was a clumsy orator. Obama’s words soared. Bush was the voice of the special interests and the past. Obama was the voice of the disenfranchised and the future.

When we pulled the lever for Obama we believed we were making the world a better place. For a brief moment in history, Obama made us believe that Hope and Change were achievable political values. When we gathered in Grant Park in Chicago on Election Day, the minute the California polls closed and CNN flashed its projection, the crowd was so swept up in the profundity of that history-shaking moment that time seemed to freeze. I hugged a stranger that night and we cried.

As Obama would say on his way out of office eight years later, reality has a way of asserting itself. There really was no post-racial America, no progressive wave, no hope, and no change. America hated Bush enough to elect the most liberal candidate in history, and America corrected itself two years later when the Republicans took back the House of Representatives. The post-Obama swing has arguably continued into the 2016 election, bringing us the biggest wildcard in American history.

Even so, for the first couple years, I had more or less a positive feeling about Obama’s policies, and politics, until 2011 or so when my economic and political thinking took a hard libertarian tack and I found myself alienated towards my former political idol and the Democratic Party I thought reflected progress. The economy didn’t magically get better; healthcare wasn’t magically solved. I went through a personal journey that paralleled, perhaps, that of many in my generation: disillusionment, alienation, resentment, political realignment. I was probably one of many who watched with excitement and anticipation in 2009 when Congress voted on ACA, hoping that it would pass, and three years later nearly lost my mind when the Supreme Court refused to rule it unconstitutional.

Obama was still the president, but for me, for years he represented the worst of American politics. In my view, he was the face of the arrogance of Washington DC. His rhetoric that I had once praised as transcendent became bitter and divisive. He condescended to the masses with placations and platitudes and they bought it hook, line and sinker. I pulled the lever for Gary Johnson in 2012 and never regretted it.

Then, strangely enough, in 2013, my relationship to Barack Obama changed again. Living in the liberal capital of San Francisco, despite our political differences I happily partnered up with Max Slavkin and Aaron Perry-Zucker of the Creative Action Network, whose first product was a folio of pro-Obama propaganda (or as we called it, art). As their first CTO, I spent the next year creating an ecommerce and art submission platform to sell a litany of poster campaigns geared towards progressive causes with impactful results, including See America which now has a great book selling in the national parks. In San Francisco, I found myself pulled back into the progressive network of creatives and intellectuals I had spent the previous two years trying to avoid. I came to see that, despite our disagreements on many issues, their hard work to make the world a better place was admirable, and many of them continue to be close friends.

All the while, Barack Obama was my president, and the distance between us started to shrink. Second term Obama was my flavor much more than first term Obama. I admired his work on criminal justice reform. I was extremely supportive of the Trans-Pacific Partnership and watched with dismay as that fell apart. His actions on Cuba and Iran were exciting. I even cheered Kerry’s recent foray into the thorny Israeli settlement issue. I celebrated when Obama ‘evolved’ on same-sex marriage, and celebrated more so in San Francisco the week the Supreme Court ruled it constitutional. Obama wasn’t perfect by any means, especially when it came to his expansion of drone strikes, surveillance power, executive privilege, his handling of Syria, and more. But over the last three years I have developed a newfound begrudging respect for the community organizer from Illinois.

Did Obama leave me, or did I leave Obama? And once separated, did he come back to me or did I come back to him? Did he become more centrist, more pragmatic in recent years? Or did we evolve towards each other, like a divided America dancing in disagreement towards a common truth? I know that my progressive friends feel somewhat betrayed by the Obama presidency, for the same reason that my conservative friends have felt warmer towards him in recent years. Maybe we all are changing in ways we wouldn’t like to admit. Or maybe Obama, the great pragmatist, has had his finger on the pulse of our generation in a way no one ever has.

Like all presidents, he leaves office with a mixed legacy. But for me, Obama was simply my president, for better or for worse. Like postwar Eisenhower, he is the president historians will feature when they turn the page into the 21st century. I think John McCain would have made a fine president, as would have Mitt Romney. But despite all my distrust of #44 and my concerns about his achievements, I have grown accustomed to That One and will be sad to see him go. Because, for better or for worse, America is turning the page again, and though we don’t know what the next chapter will bring, this one wasn’t all that bad.

In many ways, it is impossible for me to disentangle the history of Obama with my own history. It’s impossible not to think about the most powerful person in the world–someone who is always in your living room and on your computer screen–as part of your life. And like any other relationship, mine with Obama has had its ups and downs, and must now sadly come to an end. Not sadly because change, or even Trump, are inherently bad, sadly because Obama is the president I have gotten to know through the years and now he’s about to ride off into the sunset.

So, it is with only a tinge of irony that I close this obituary of my relationship with Barack Obama, happy to see the country still standing, hopeful for the next four years, and appreciative of the accomplishments of this undeniably impressive politician and man.

Today was a monumental victory for all Americans, even those who believed (and continue to believe) that marriage equality somehow erodes the sanctity of that union. The fact is, extending the right to marry to all couples nationwide is a vindication of that union. And our Union today is stronger for it.

From Justice Kennedy, what will surely become some of the most enduring words in the history of the Supreme Court:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

I haven’t posted in a long time because I’ve been busy. Busy with work, busy with life. Being busy sometimes tricks you into believing there are no bigger causes to care about than your own petty concerns. This is one of them. As someone who has advocated for marriageequality for a very long time, I am very proud to be an American today.

To my gay friends, family, and neighbors: congratulations. This is your day. But this is also a day for America. Today was one of those rare days in American history that we will look back upon and say: “that day, we all became more free.”

The president starts spying on American citizens. Then he starts indefinitely detaining them. Then he starts exiling them. Then he starts executing them. All without due process. All without a speedy trial or a trial by jury, some without any evidence whatsoever. And all while people in the same party as the president defend his actions on the grounds of national security. Then the parties flip and the previous defenders of the administration start to show “concern” and its attackers become defenders.

It would read like a bad farce, but it’s true. And it is true not because we weren’t aware of what was happening, but because we didn’t care enough to do anything to stop it. “They’re all terrorists,” we tell ourselves. “The government wouldn’t go after them unless they had reason to believe they did something wrong.”

Something is definitely wrong when Pakistanis are rightfully protesting our government’s actions whilst we remain disturbingly silent.Never mind that the Justice Department memo “justifying” the execution of American citizens abroad came out barely three weeks after the suicide of Aaron Swartz brought national attention to prosecutorial overreach on computer crimes, going after kids with hard jail time for exploration of computer systems no more harmfully than playing ding dong ditch.

Never mind that this is the same week that the two out of three branches of government are aggressively pushing to take guns away from law abiding citizens (even though the same government has no problem sending billions of dollars in unrestricted weapons to Israel and Egypt).

Never mind that the administration, with cover from the Supreme Court, has forced people to buy health insurance from megacorporations, while those same corporations now mysteriously have more power than they had when Obamacare was passed. And, not coincidentally, health insurance premiums are rising, not that we couldn’t see it coming.

Never mind that the executive branch continues to raid marijuana dispensaries that are operating legally under state law, and the most openly drug using president in history is secretly jailing thousands of nonviolent drug users like himself.

I fear that the greatest threat to liberty is not our government, but ourselves. That we would be so complacent in this farce as one by one our rights are trampled upon. That we would continue to defend our ideas as constitutional and the others’ as unconstitutional, when in reality we seem content to pick and choose the parts of the constitution we agree with and discard the rest. “Let’s give up on the constitution,” said one prominent constitutional law professor in December. How soon before more people believe that? How soon before government’s legitimacy crisis comes to a head?

This post is predicated on a text message I just received from my friend, to quote: “Roberts is a genius. He punted it to Congress to deal with as a tax issue and curbed further creep of the Commerce Clause.”

Let’s look at what John Roberts did today. Stepping back from whether or not ObamaCare is good policy–and he’s right, that’s not for the court to decide–let’s look at the mechanics in place here.

Roberts joined with the liberals on the court (Ginsberg, Breyer, Sotomayor, Kagan) to constitutionally validate the American Care Act (ACA) without some provisions of the Medicaid expansion

Roberts defined the “individual mandate” as a tax with the liberal side

Roberts and the conservative side held that the Commerce Clause does not Congress the power to compel commerce

The court held 7-2 that the government could not coerce the states into accepting the Medicaid expansion by withholding all Medicaid funding

Some excellent analyses I have read (here and here) have confirmed the notion that Roberts’ decision might have “lost the battle but won the war.” In siding with the liberals, Roberts took away the potency of arguments against the partisanship of the court. In upholding the mandate, Roberts recognized the power of Congress to enact policy. In ruling the exercise of the mandate under the Commerce Clause unconstitutional, Roberts provided a key precedent for future decisions limiting the power of the government to compel commerce. In ruling the mandate a tax, Roberts made it very clear that Congress was only exercising its existing authority and has no additional authority. Finally, in rejecting the coercion of states into joining the Medicaid expansion, Roberts upheld what remains of Federalism.

The politics at play behind the scenes must have been bewildering. A lot of moving parts had to come together here, and Roberts played his role expertly. He got the liberals (with the exception of Ginsburg) to join his interpretation of the Commerce Clause and Necessary and Proper Clause as such, presumably in exchange for his endorsement of the ACA. And this interpretation of the clause will survive long after the ACA is repealed in Congress.

People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act…Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.

This was the most important part of the ruling. The biggest fear of the ACA was not the socialization of medicine–although that’s a legitimate fear–but the creeping expanse of federal power. All lovers of freedom should cheer the now-grounded notion that the government at least does not have the power to compel the purchase of a product by a citizen–a truly frightening idea.

Now, this notion could have come across in a majority decision if Roberts had joined the court’s other conservatives in striking down the law. But here Roberts played his hand very well. It’s not just about legacy, although he was able to secure trust in the Supreme Court that will be invaluable when, for instance, the Court strikes down the next congressional Obamination. It’s not a perfect result for conservatives, of course–we would have preferred the entire law struck down because it’s just bad policy–but it speaks to Roberts’ integrity that he is able to ground his opinion in conservative notions of Federalism and judicial restraint (a point made in the dissent as well: “For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it”). Most importantly, it allows Roberts to continue to guide the Roberts Court for the next couple years–and Roberts himself, whose tenure as Chief Justice will probably last for 30 more years, will certainly reap personal and judicial dividends from his leadership on this issue.

Remember: Roberts did not endorse Obamacare today. In fact, he all but calls it bad policy. Quoth my friend in an email to me this morning:

By sustaining individual the mandate on the basis of Congress’s power to raise taxes, he punted Obamacare back to Congress and gave his permission for the GOP to call it a tax. This should be enough to make every Democratic incumbent cringe. Since inception, the President and the Democratic House leadership have been desperate to avoid calling a spade a spade: that the mandate was a new tax. Roberts prevented them from having their way and ultimately will let Congress decide whether to stay or repeal this new tax.

I am not nearly as upset now as I was when I first heard the decision. This is not an ideal result for conservatives, but this is not a victory for liberals either. For most liberals, that there are actual limits on what the Government has the power to do will be a tough pill to swallow. As George Will writes, “People steeped in Congress’s culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle.” Now that has changed. And that is good news for lovers of freedom.

Today, the U.S. District Court for the Northern District of California decided that Proposition 8 to the California constitution violated the United States constitution. This decision marks one more step in the historic–and seemingly endless–march for gay rights in the United States and the world.

California has long been a center of gay activism and progress in the area of gay rights. San Francisco was the first city to elect an openly gay city supervisor, Harvey Milk, in 1978. In that year, California’s Proposition 6, also known as the Briggs Initiative, which would have prevented gays and lesbians from working in the school system, was defeated. However, gay marriage was still not valid or recognized in California. In 2000, California passed Proposition 22 which constitutionally defined marriage as being only between a man and a woman. In 2008, the Supreme Court of California overturned this amendment, legalizing gay marriage in California for several months until the November election, when Proposition 8 was passed which overturned the court’s decision.

Time and time again, the courts have upheld the rights of homosexual couples to marry, and time and time again, populist movements have put an end to this basic human freedom. Today, a Federal judge issued an invalidating ruling, meaning that in California, for the time being, the only hope for defeating gay rights is in the Supreme Court. (For you constitutional purists out there, the reason we have courts in the first place is to provide guidance on law and prevent unjust laws when we don’t know any better.)

Today California once again joins the ranks of the few states in America that extend this privilege to homosexual couples: Massachusetts, Connecticut, Iowa, Washington, DC, New Hampshire and Vermont. We will see soon if the Supreme Court upholds today’s ruling. In my opinion, there is no valid argument–constitutional, moral, religious, or otherwise–against allowing homosexuals to marry to the fullest extent of equal protection under United States federal law. The only valid constitutional argument from a Federalist perspective is the separation of powers and the States rights doctrine. This is certainly a valid argument to make, but keep in mind that if the Supreme Court had consistently strictly upheld the States rights doctrine when it came to matters of equality, segregation would still be legal. Interracial marriage would still be illegal. Plus, we have the Fourteenth Amendment for a reason!

It is important for Americans of all races, religions and orientations to remember that our ancestors also faced opposition to their basic human rights and freedoms. Indeed, the past four hundred years of history in America has been a story of groups gradually winning the right to be viewed as equals. In the struggle for gay rights, we see a similar endurance and persistence that has occupied every civil rights movement in our history. The same endurance that led blacks to freedom, that led women to the ballot box and that even led Jews to Israel. There is no doubt that, like these movements of the past, the movement for gay and lesbian rights in America will succeed. The decision today in California is a vital step on the road to justice. The more the opponents of this movement try to hold the country back, the louder its drive for justice, and the sweeter the victory.

It is easy for Americans to forget, being as secure we are in our citizenship and our persons, how hard it was for our parents and grandparents to fight so it could be this way. Think about the progress we have made as a nation in just the last century–but also think about how much further we have to go, not just in terms of gay rights but in terms of many basic human rights, worldwide, that we take for granted.

If you are interested in the legal thought going into today’s decision, check out the text of the ruling here (http://scr.bi/awBcpr). There is also a great article by the plaintiff’s lawyer, Ted Olson, in Newsweek called “The Conservative Case for Gay Marriage” (http://bit.ly/9ZYdU4). Olson explains quite eloquently that the fight for gay rights is not just a gay issue or a liberal issue, but an American issue.